States move to limit EPA’s clean water authority

Florida, Texas and Alaska are nowhere near the Chesapeake Bay. But that hasn’t stopped those states from trying to intervene in the EPA’s cleanup of the mid-Atlantic estuary.

Earlier this month, the attorneys general from those states and 18 others filed an amicus brief [PDF] on behalf of the American Farm Bureau Federation, which is suing to limit the extent of the Environmental Protection Agency’s Chesapeake Bay cleanup effort. The Farm Bureau argues that the EPA exceeded its authority in regulating the amount of pollutants flowing into the bay, which the federal agency says is severely contaminated.

At question is how far the EPA can go in setting limits to ”the maximum amount of pollution a body of water can receive and still meet state water quality standards.” According to the Farm Bureau, the EPA exceeded its legal authority by trying to determine how much individual polluters would have to cut back, instead of just setting an overall so-called “Total Maximum Daily Load” and allowing the states to determine how it would be parceled out.

“These are uniquely local decisions that should be made by local governments,” said Farm Bureau President Bob Stallman in a statement. “That is why this power is specifically withheld from EPA in the Clean Water Act.”

The amicus brief, which was signed by 18 Republican attorneys general and three Democrats, seconds this line of argument. Although all but one of the 21 signatories hail from states which do not border the Chesapeake Bay, they say that the case has national implications. A legal regime which gives the EPA the power to closely regulate pollution in the bay could give it equivalent power in contaminated bodies of water across the United States.

“If this TMDL is left to stand, other watersheds … could be next,” according to the amicus brief. Eight counties from states bordering the bay also filed a separate amicus brief.

Ironically, the EPA is only taking such an active role in the Chesapeake Bay cleanup because of another lawsuit. In early 2009, a coalition led by the nonprofit Chesapeake Bay Foundation sued the agency for not taking an active enough role in Bay cleanup efforts. The EPA settled a little over a year later and soon implemented its polution limits for the region.

“The Clean Water Act says the states have to do it, and if they don’t do it then the EPA has to do it,” said Scott Edwards, an attorney with the nonprofit group Food and Water Watch. “And in this case, the states didn’t do it for year after year after year, and finally someone sued the EPA.”

He argued that the newer lawsuit is simply an attempt by the agriculture industry to ward off regulation on how much it pollutes. The biggest pollutants found in the Chesapeake Bay are nitrogen and phosphorus, both of which are largely byproducts of mass agricultural production.

“Agriculture remains in this country the one big source of pollution that neither the EPA nor the states are regulating as a pollution source,” Edwards told msnbc. “Agriculture is the largest polluter of nitrogen and phosphorus, and nitrogen and phosphorus are some of the most damaging pollutants around the country that still exist and are still discharged around the country.”

Farm Bureau attorney Ellen Steen pushed back against this characterization of the lawsuit over email.

“Our appeal has nothing to do with stopping the ongoing work of restoring the Chesapeake Bay,” she wrote. “We are fighting to preserve the careful balance of federal versus state and local power that Congress built into the Clean Water Act. It’s not about whether EPA can set a total pollutant load – it’s about whether EPA can dictate which land can be farmed, or where homes, schools and roads can be built. Those who claim otherwise are either failing to read our court papers or are intentionally misleading the public.”

In response to a request for comment, a spokesperson for Florida Attorney General Pam Bondi forwarded along an opinion piece written by Bondi and published in several local papers.

“The best way to serve the cause of environmental protection is to recognize the states’ authority and be vigilant about EPA overreach,” wrote Bondi. “This brief is not about whether to protect the environment; it is about defending the role Congress gave states in protecting their own widely varying environments. I will remain steadfast in my efforts to stop the federal government from exceeding its authority and infringing on our rights.”

But the government of at least one state along the Chesapeake Bay begs to differ. Shortly after the other states weighed in, Maryland Governor Martin O’Malley, a rumored contender in the 2016 Democratic presidential primary, directed Attorney General Douglas Gansler to file an amicus brief supporting the EPA’s position.

“While we have accomplished much, there is still more work to be done and it is imperative that we continue our efforts to ensure that our nation’s largest estuary, a true national treasure, will be protected for future generations,” said O’Malley in a statement. “As Chair of the Chesapeake Executive Council, I am encouraging the other states in the Chesapeake Bay Watershed to join Maryland and support the EPA in this effort.”